Wednesday, August 24, 2016

In 2010, the Florida legislature changed Florida Statute Section
718.112(2)(l) to amend the rules regarding the requirement for retrofitting of
sprinklers in condominium (and cooperative buildings under 719.1055(5)(a)). The change removed the following key
provisions:

For
purposes of this subsection, the term "high-rise building" means a
building that is greater than 75 feet in height where the building height is
measured from the lowest level of fire department access to the floor of the
highest occupiable story. For purposes of this subsection, the term
"common areas" means any enclosed hallway, corridor, lobby,
stairwell, or entryway. In no event shall the local authority having jurisdiction
require completion of retrofitting of common areas with a sprinkler system
before the end of 2014.

This
change has sparked a controversy as to whether all condominiums are now
required to either retrofit sprinklers or vote to waive retrofitting no later
than December 31, 2016. This change was
intentional and by doing so the legislature specifically intended the law to
apply to all condominiums, not just high-rises. As this is state law, it trumps any local
limitation or requirement which would limit or not require such installation
for condominiums under seventy-five feet in height.

The starting point for compliance
is the Division of Florida Condominiums, Timeshares, and Mobile Homes, the
state body that regulates condominiums.
In its written statement on the issue the Division has stated that:

Condominium
and cooperative associations are required to report to the division certain
information regarding the membership vote to waive retrofitting requirements
for fire sprinkler systems and handrails and guardrails. If the association
does not waive retrofitting requirements, it must report the per unit cost of
retrofitting to the division

The Division
makes no distinction between high rise and low rise condominiums. As a result of the change in the law and the
Division not ruling that the law does not apply to condominiums below seventy-five
feet in height, it means that absent a change, all condominiums and coops must
either vote to waive retrofitting or start the retrofit process by the end of
the year and report their actions to the Division. As late as early July, 2016 Travis Keels,
deputy director of communications for the Florida Division of Condominiums
stated, “Generally speaking, the fire sprinkler requirement applies to all
residential condominiums.”

However, due to
contradictory laws relating to low rise sprinklers, there are now many voices
asserting claims that the law does not actually require retrofitting for low
rise condos/coops. The Florida State
Fire Marshall issued a statement saying that: “The Florida Fire Prevention
Code… requires only high-rise buildings that do not have exterior access from
each dwelling unit to be protected throughout by an approved, supervised
automatic sprinkler system.” However,
the Fire Marshall also recognized that their office “…cannot interpret the
provisions of Chapter 718.112, Florida Statutes.”

Senator Jerry
Ring, a sponsor of the 2010 legislation that changed the law, has also
commented on the issue. He stated, in a
letter dated July 28, 2016, to the Director of the Division of Florida
Condominiums:

It
is regrettable that the Division’s “interpretation” of a 6 year old statutory
amendment comes to light through a newspaper quotation a mere 5 months before
the opt out deadline expires, and at a time of year when many communities have
difficulty conducting business (let alone owner votes) due to seasonal
absences. While I recognize that the comments made were undoubtedly in good
faith, they are simply an incorrect interpretation of legislative intent. Due
to the amount of concern that this newspaper quote has generated, especially in
light of its timing, I am requesting that the Division issue a press release
consistent with the intent of the Legislature.

The problem
is while the letter is well meaning, it is not a change in the law, merely one
legislator’s interpretation of the intent of the law. Therefore, we are recommending that all
condominiums and coops start the process to waive retrofitting by either a
member meeting or a written consent to action.

The written consent allows for
votes to be collected from local and absent owners by signing a written
statement voting to waive retrofitting.
Interestingly, the Division allows even Associations that do not have
express power to approve matters by written consent to use this process, “Voting
by written consents or written agreements may be utilized by an association
regardless of whether the bylaws or the declaration specifically permit voting
by written consents or written agreements.”
In order to waive the costly installation, the vote must be made by the
“affirmative vote of a majority of all voting interests in the affected
condominium.” Now is the time act, as
sufficient votes to waive must be received no later than the end of the year.

Michael
Posner, Esq., is a partner in Ward Damon a mid-sized real estate and business
oriented law firm serving all of South Florida, with offices in Palm Beach
County. They specialize in real estate
and can assist community associations in all legal matters including
retrofitting votes. They can be reached at 561.594.1452, or at
mjposner@warddamon.com

About Me

I am a Florida Board Certified Real Estate Attorney with 30+ years of residential and commercial real-estate experience.
I am an equity partner in Ward, Damon, Posner, Pheterson & Bleau, a mid-sized law firm serving all of South Florida, with three offices in Palm Beach County. Our firm specialize in and can assist in buying, borrowing and selling property throughout South Florida. I can be reached at 561.594-1452, mjposner@warddamon.com or www.warddamon.com